Yikes! comScore CEO assaults a Moat employee during patent deposition

Patent warfare is fairly dry stuff. Following along requires the navigation of tedious legalese. Very little action happens. It takes a great storyteller like Laura Sydell and NPR to explain the stakes in an engaging way.

And yet! This week a case I've been following for the last year actually saw some real action. The patent battle between Web measurement company comScore and ad viewability startup Moat got so heated that CEO of comScore physically assaulted his opponent in a courtroom.

A batch of court documents filed yesterday show that, during an August 23 court deposition in Reston, Virginia, comScore's CEO Magid Abraham assaulted a man named Mr. Berman, who was acting as general counsel for Moat.

A signed and notarized statement from court reporter Amanda Curtis reads as follows:

During a break, Mr. Abraham approached Mr. Berman, both of whom were behind my back as I was on my computer working on the transcript. Mr. Abraham made a comment about how Mr. Berman offended his wife in her prior deposition on Tuesday, August 20th, 2013, when Mr. Berman asked her if she spent alone time with her husband.

The dialogue went on for a few more seconds and then I heard Mr. Berman say something to the effect of, "You can't do that." Mr. Abraham then said something to the effect of, "I can't do this? I can't do this?"

I then turned around to see Mr. Abraham's fist several inches away from Mr. Berman's nose, just holding it there. The confrontation ended and Mr. Ostrow and Mr. Arshad escorted Mr. Abraham out of the room.
The court videographer, David Voigtsberger, provided a similar statement:

At around 12:30 p.m., we went off the record to take a break. Mr. Abraham appeared to be agitated as he was getting up from the table. I saw him approach Mr. Berman, stood close to him, was accusing Mr. Berman of something and moving his finger in a circular way in Mr. Berman's face. Mr. Abraham's attorneys removed Mr. Abraham from the room.

So there's that.

To be clear, physically threatening an opponent does not change the lawsuit itself or the countersuit. It doesn't help comScore, though, especially if the case ends up going to trial by jury.

These statements came out as part of a 23-page emergency motion to adjourn the trial, which Moat filed yesterday. The motion included argues that the trial be adjourned based on comScore's disregard for the court's orders. It outlines the way comScore missed nine deadlines for producing discovery documents like email records, cancelled depositions at the last minute, did not make its chairman available for deposition, and refused to answer questions.

Oh, and there's that assault thing, too.

For background, last August, comScore (which may or may not be evil, depending on whether you ask Jason Calcanis or Michael Arrington) sued three startups over their right to measure whether someone had viewed an ad online.

It was a bully move (an opinion I expressed at the time). Nearly every company in the adtech Lumascape measures ad impressions in some way. comScore didn't sue large companies like Google. Nor did it sue any of the myriad of small guys without funding. It chose Moat, Adsafe, and DoubleVerify, because they'd all raised sizable chunks of venture funding and had gained some traction in the market.

Meanwhile, comScore had previously argued that the very patents it was using to sue the startups over were themselves invalid. ComScore was simply stuck with them from an expensive lawsuit it won against Nielsen. So the company decided to use those supposedly invalid patents to put three startups out of business.

Since the lawsuit, two of the companies settled out of court with comScore. Moat has chosen to fight the accusations. (The company is notably a listed client of RPX, the conflicted patent aggregator I profiled earlier this week for our patent series.) Moat acquired a patent of its own to counter-sue with and accused comScore of fraud for promoting its idea of "viewable impression" as a standard form of measurement to industry groups like the IAB, while simultaneously suing any company that tried to use "viewable impressions" as a form of measurement.

That's the simplified version. If you want to get into the nitty gritty, here are a few breakdowns writtenby myself and others.